Excerpt:.....whom had been deputed by sub-inspector inderdeo singh (pw 20) to remain present at the place of occurrence where breach of peace was apprehended were present and actually witnessed the occurrence. the more persons ramdeo dusadh (pw 1), servant of lala singh and janakdeo singh (pw 2) were also present at the place when the appellants and their companions arrived there. - the supreme court held that the submission was not well founded as p......all the appellants belong to village islampur in patna district. tin victim of the offence was one lala singh of tulibigha, police station ghosi district gaya, who was murdered at about 9 p.m. on december 29, 1963, at balu khanda of village islampur in a portion of plot no 542 about 400 yds. away from islampur village. according to the prosecution story dhan sao (pw 13), had a few days before the occurrence in question sold a portion of plot no 542 to lala singh (deceased), mangal sao and ramdeo. on december 29, 1963, the purchasers are stated to have been put in possession of the land purchased by them. there was a room on the portion purchased by lala singh. lala singh was on the premises when at about 9 p.m. the appellants, along with some other persons variously armed arrived there.....

Judgment:

I.D. DUA, J.

1. The appellants who have appealed to this Court by special leave were convicted by the first Additional Sessions Judge, Patna for the offence under Sections 303/149 of the IPC and sentenced to imprisonment for life. Barhan Mistry, Moin Mian and Jafru Mian alias S.M. Jafer Alam alias Jhanjhatwa were also convicted under Section 147 of the IPC and sentenced to rigorous imprisonment for one year each. Bengali Mian, Syeed Mian, Sachhu Mian and Kamru Mian alias Kamrul Hassan were in addition convicted under Section 148 of the IPC and sentenced to rigorous imprisonment for two years each. Kamru Mian alias Kamrul Hassan was also convicted under Section 25(1)(a) of the Arms Act and sentenced to rigorous imprisonment for one year. The appellants were acquitted for the charges under Sections 353 and 302 of the IPC, on benefit of doubt. Their appeal was dismissed by the Patna High Court.

2. All the appellants belong to village Islampur in Patna District. Tin victim of the offence was one Lala Singh of Tulibigha, police station Ghosi District Gaya, who was murdered at about 9 p.m. on December 29, 1963, at Balu Khanda of village Islampur in a portion of Plot No 542 about 400 yds. away from Islampur village. According to the prosecution story Dhan Sao (PW 13), had a few days before the occurrence in question sold a portion of Plot No 542 to Lala Singh (deceased), Mangal Sao and Ramdeo. On December 29, 1963, the purchasers are stated to have been put in possession of the land purchased by them. There was a room on the portion purchased by Lala Singh. Lala Singh was on the premises when at about 9 p.m. the appellants, along with some other persons variously armed arrived there and Kamru Mian fired a pistol shot. Lala Singh tried to run away but was surrounded by the appellants and their companions and done to death. Mouinuddin, Constable (PW 15) and Chowkidars Jageswar Pandey (PW 5) and Ramlagan Paswan (PW 8), all three of whom had been deputed by Sub-Inspector Inderdeo Singh (PW 20) to remain present at the place of occurrence where breach of peace was apprehended were present and actually witnessed the occurrence. The more persons Ramdeo Dusadh (PW 1), servant of Lala Singh and Janakdeo Singh (PW 2) were also present at the place when the appellants and their companions arrived there. The FIR (Ex-5), was lodged by Mouinuddin (PW 15) at 9.30 p.m. the same night at the Police Station Islampur which was at a distance of half a mile from the place of occurrence. Mouinuddin had left behind at the place of occurrence the two Chowkidars to guard the dead body of Lala Singh when he went to lodge the report. This report contains all the relevant details of the entire occurrence, including the circumstances in which he and PWs 5 and 8 had been directed to remain on duty at the place of occurrence. The trial court as well as the High Court accepted the account of the occurrence as given by PW 5, 8 and 15 and there being no reasonably precise counter version given by the accused in their statements under Section 342 of the CrPC, the appellants were convicted, as observed earlier.

3. Mr Murddin, learned Counsel for the appellants, with his usual fairness did not question the factum of Lala Singh having been murdered at the place of the occurrence. He, however, strongly assailed the reasoning and conclusions of the trial court and of the High Court and submitted that there was in fact no eye-witness to the ghastly murder of the deceased and that the appellants have been falsely implicated apparently because the police investigating agency was interested in getting credit for successfully tracing the murderers. According to him the alleged eyewitnesses were nowhere near the scene of the occurrence when the deceased met with his death and the story narrated by them was fabricated for the purpose of roping in the appellants. The other line of attack was based on the right of private defence of property and this right was sought to be substantiated by submitting that the room on the site in question had been in possession of the appellants men for a number of years for the purpose of preparing Biris and it was only when Lala Singh (deceased) and his associates attempted to take forcible possession thereof that the trouble started and resulted in Lala Singh's death. These two lines of challenge to the appellant's conviction were somewhat mixed up in the appellants' arguments and it was contended that their conviction was bad either on the ground that no one saw the occurrence and, therefore, there is no evidence establishing the appellants' guilt or on the ground that the appellants were justified in using force in exercise of their right of private defence. In this connection it was contended that no command certificate directing Mouinuddin (PW 15) and the two Chowkidars Jageswar Pandey (PW 5) and Ramlagan Paswan (PW 8), to keep a watch at the place of occurrence had been issued on a proper form and the one produced on the record seemed to have been fabricated later. This, according to the counsel, belies the version that these three witnesses had been so deputed and were present at the scene of the occurrence when the conflict took place. It was added that seeing the police constables the accused could not have dared to resort to aggression and violence in the manner alleged. It was sought to be concluded on this reasoning that these three witnesses were not present when the occurrence took place and did not witness anything.

4. In our opinion this submission is not well-founded. Mouinuddin (PW 15) has stated that the command certificate was made over to him at the place of occurrence. He is supported on this point by Sub-Inspector Inderdeo Singh (PW 20) and Inspector Kameshwar Prasad Singh (PW 16). Whether the command book can under the rules be taken out of the police station or whether the command can be prepared on plain paper when it is considered necessary to do so during the course of duty away from the police station are questions the answers to which would not throw any doubt on the fact that these witnesses had actually been deputed to keep a watch at the place of occurrence. Any irregularity in the matter of issuing the command certificate (assuming without holding, there is one) would not affect the presence of these witnesses at the spot if their testimony is believed. The command certificate (Ex-9) which is not printed was apparently prepared on plain paper but that would seem to us to be immaterial. It may, however, be pointed out that our attention was not drawn to any provision of law invalidating it. In this context the appellants' counsel also argued that the policeman had originally been deputed to keep a watch pursuant to a complaint made by the accused persons that Lala Singh and his party had planned to take forcible possession of the site in question. This, according to the appellants' argument, supports the plea of self-defence.

5. We are unable to find any material on the record in support of these contentions. The submission that there was no one present when the deceased met with his death and the eyewitnesses have falsely repeated in Court a tutored version is unacceptable because the constable (PW 15) and the two Chowkidars Jageswar Pandey (PW 5) and Ramlagan Paswan (PW 8) have been believed by both the Courts below and in our opinion they have deposed to the story which is plausible and sounds convincing. It has not been shown to suffer from any infirmity which would detract from its trustworthiness in spite of the varied criticism by the appellants' counsel. His criticism mainly centred round the assessment of the evidence of the Courts below which assessment must in our view be treated as final and not open to reconsideration on appeal under Article 136 of the Constitution unless it is shown to be vitiated by some grave error or has led to gross injustice. The mere possibility of two views being taken is not enough. Once the conclusion of the two Courts below believing these witnesses is upheld, and in the present case there is no reason why we should not uphold it, the appellants' challenge on this ground must be repelled. In the final result this appeal fails and is dismissed.